Fitbit Evidence: The Latest Dystopian Law School Hypothetical Come To Life

All of this self-tracking will lead to a treasure trove of questionable evidence for prosecutors to pick and choose at.

If you have enough legal training, you are rightly worried about voluntarily tracking yourself and providing that information to a third party. By the end of your 1L year, it should be obvious that you don’t want something tracking everything you do inside your house, because “Alexa, buy bleach” could be used against you if the lab can’t grab enough DNA out of that blood stain.

But, at some level, even our best attempts to avoid the law man might be frustrated if enough other people are using these devices. And that might be what’s happening to Wisconsin man, George Burch.

Burch is accused of murder. Somebody heinously slayed Nicole VanderHeyden. Burch’s lawyers point the finger at VanderHeyden’s boyfriend, Douglass Detrie. Burch claims that Detrie saw the two having an affair, brutally murdered VanderHeyden, then held Burch at gunpoint and made him move her body some three miles away from their home.

Prosecutors intended to counter theory of the case with evidence from Detrie’s FitBit. They claim the wristband shows Detrie sleeping at the time of the killing.

A Wisconsin judge rejected the FitBit sleep monitoring evidence:

“Given that this current pending lawsuit calls into question the reliability of the sleep-monitoring data of the Fitbit Flex, the Court finds the prejudicial nature of this evidence, coupled with its, at best, questionable reliability, is outweighed by its probative nature and thus is inadmissible,” reads the decision from Judge John Zakowski.

But the judge will allow the prosecution to introduce evidence from Detrie’s step-counter. Apparently, counting steps is “not so esoteric” that the average juror would have a problem understanding.

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Folks, I am concerned with our new algorithmic overlords. It’s not that I don’t believe in science and technology. I do. It’s not that I don’t want justice for VanderHeyden. Society owes her no less. But I am concerned that putting a man in jail for the rest of his life based on somebody else’s FitBit is not the very best our criminal justice system can offer.

Jurors are dumb. Not only from the perspective that our juror system actually disincentives the participation of smart people, but also in the sense that the “wisdom of the crowd” is usually trash. I simply don’t trust 12 jurors to really freaking know if the FitBit evidence is reliable or not. That’s not a call they’re qualified to make.

I don’t want the man to get off because one juror said “I’ve got one of them new-fangled electric bracelets, and it’s always plumb wrong about how much of giant fat-ass I am.” I don’t want the man to go to jail because 12 people are like “well, FitBit can’t lie.” I want prosecutors to be able to make their case based on actual facts and evidence, not some pseudo-scientific BS.

Placing these calls on judges and, ultimately, juries is one of the worst aspects of our criminal justice system. Judges are bad at knowing what good science is, versus mere speculation. Juries are even worse. In a perfect world, your Daubert hearing is not two lawyers trying to convince a judge, it’s two scientist trying to convince… Neil deGrasse Tyson.

I’m not really joking. I nominate Neil deGrasse Tyson to be our new “Physical Evidence Czar.” You have to convince him that your evidence should be admissible. Law and science would be better off.

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Judge tosses out Fitbit sleep-monitoring evidence ahead of Burch trial [WBAY.com]


Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.